Robert Treat Paine Papers, Volume 2
On the second instant I recieved the Resolves of the honorable House of the first Instant requiring me to declare whether I had recieved in full the Grant of the General Assembly made to me the last Year, & to declare explicitly whether I would for the future accept the Grants of the General Assembly of this Province as a Justice of the Superiour Court, without accepting any Grant from the Crown for my Service as a Justice of said Court.
Permit me, may it please your Honours! to State the Circumstances of my Case, as a Justice of the Superiour Court.
In the year 1756 I was appointed as a Justice of that Court, & accepted the office contrary to my own Inclincation, but by the perswasion of Gentlemen who were then Members of the Generall Court Assembly. In this Office I have Continued for above seventeen years; and I hope your Honours will excuse if I say that I was never yet Conscious that I had ever been guilty of any Violations of the Laws of my Country in525a judicial Capacity, but have always endeavoured to Act with that Fidelity required in so important a Charecter: & with this Sentiment I doubt not of ever consoling my Self in the Approbation of my own mind.
During these Seventeen Years, I have Annually felt the great Inconveniencys of serving in my judicial Capacity Office, by suffering in my private business, & not having a Salary which would any ways support my Family, which was large, & I cannot charge my Self with any Degree of Extravagance in the Support of it: & I wish I may not have been too parsimonious, for the Dignity of the Province in my judicial Charecter.
May it please your Honours!
I can with the strictest Truth assert, that I have suffered since I have been upon the Bench of the Superiour Court, in the Loss of my Business & not having sufficient to mentain my Family from my Salarys, above three thousand Pounds sterling: I have repeatedly thrown my Self on former Assemblys for relief, but never have obtained any Redress: I have repeatedly attempted to resign my Office, but have been diswaded from it, by respectable Gentlemen of former Assemblys, who encouraged me with Hopes of a Support, but I never recieved any Relief in that way.
When his Majesty, of his great Goodness & favour granted me a favour Salary (as he did to several others on the Continent in my Station) it was without any Application of mine; & when it was granted, I thought it my incumbent Duty, from the Respect and Gratitude I owed to his Majesty: from a sence of that Fidelity which I owed to my Country, by being enable to discharge the Duty of my office, in being less embarrased in my mind whilst in the Execution of my office it & being more at Liberty to qualify my Self for the dutys of it in Vacation Time: as also from a principle of Justice due to my Family & to others: on these accounts, & not from any Avaricious Views, I was Obliged to take his Majestys Grant from the 5th. July 1772 to 5th. January 1774, & have taken the Grant of the Province only untill July 1772.
These Considerations, may it please your Honours! urged me to take his Majestys Grant, & I cannot but hope that the Candour of the honourable House of Representatives will excuse me in so doing; as what proceeded from Necessity & not Avarice or the least disregard to the Sentiments of the honorable House.
May it please your Honours!
With Respect to my not taking any future Grants from his Majesty; permit me to say, that without his Majestys License leave, I dare not526refuse it, least I should incur a Censure from the best of Sovereigns. And as the Tenor of the Grants is during my Residence in the Province as chief Justice, I recieve it as during good Behaviour, which in my Opinion preserve me from any undue Bias in the Execution of my Office. I am with the most profound Respects for the honorable House of Representatives their most Obedient hble. Servant,
On July 26, 1772, Wills Hill, 2d viscount Hillsborough (1748–1793), as secretary of state for the colonies, issued an order to the British Treasury to pay the salaries for the current year of Peter Oliver, chief justice of the Massachusetts Superior Court of Judicature, and his four associate justices: William Cushing (1732–1810), Foster Hutchinson (1724–1799), Nathaniel Ropes (1726–1774), and Edmund Trowbridge (1709–1793). Up to this time the Massachusetts House of Representatives had voted the salaries of the justices on an annual basis. Pressure applied by the House on the justices resulted in the four associates agreeing to continue receiving their salaries from the province. Chief Justice Oliver opted for payment by the Crown as his letter demonstrates.
The House of Representatives, angered by the Crown's move, especially the fact that the salaries would be paid out of the duties on tea imported into America, concentrated its efforts on the removal of Peter Oliver from his office. From June 1773 through early Mar. 1774 a series of messages containing the resolves of the House requesting Oliver's removal were presented to Governor Thomas Hutchinson but to little avail. On Feb. 24, 1774, the House voted to impeach Peter Oliver—96 for, 9 against. When Governor Hutchinson asked that the charges against Oliver be commited to writing it was ordered in the House "That Mr. Adams, Major Hawley and Mr. Payne be a Committee to reduce the message to Writing and lay it before the House" (p. 202). The draft was accepted and delivered to Gov. Hutchinson. In his answer of Feb. 26, 1774 he stated "I do not know that the Governor and Council have a concurrent Jurisdiction with any Judicatory in Criminal cases, or any Authority to try and determine any species of High Crimes and Misdemeanors whatsoever." Hutchinson ended his message: "Whilst such Process as you have attempted to commence shall appear to me to be unconstitutional, I cannot chew any Countenance to it."
The attempt to impeach Peter Oliver failed although the various documents relating to this case were sent by the House to Benjamin Franklin with a harsh letter against Hutchinson's actions. RTP played an active role in the affair, serving on many House committees, particularly the Committee on the State of the Province, which also included Thomas Cushing, Joseph Hawley, Samuel Adams, William Phillips, James Warren, and William Heath. In RTP's papers are several rough drafts including an incomplete one of the "Articles of high Crimes and Misdemeanors . . . " printed in Journals of the House of Representatives, 50:212–217. Much of this volume is devoted to the judges' salaries dispute particularly pp. 75–241. See also Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, Mass., 1974), 118 et seq.; Bernhard Knollenberg, Growth of the American Revolution, 1766–1775 (New York, 1975), 87–89; and Sibley's Harvard Graduates, 8:737–763.